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Portugal / Supreme Court of Justice / 149/11.4YFLSB

AA and BB v Superior Council of the Judiciary

Policy area:
Employment and social policy
Deciding Body type:
National Court/Tribunal
Deciding Body:
Portugal / Supreme Court of Justice
Decision date:

Key facts of the case:

The appeal concerned a disciplinary measure imposed by the Superior Council of the Judiciary (Conselho Superior de Magistratura, CSM) to suspend from carrying out their duties. AA was suspended for a period of 100 days and BB for 120 days, both on the grounds that they had breached their “duty to uphold probity”. AA raised the possibility of submitting a plea to the Court of Justice for a preliminary ruling mainly because: a) owing to the fact that the punishment was an administrative act, the appeal should have gone through the Supreme Administrative Court and not the Supreme Court of Justice, thereby infringing Article 47 in the Charter and 6 (1) in the European Charter of Human Rights (ECHR); b) in not being heard before the punishment was applied Articles 41 and 48 (2) in the Charter were breached; c) there is a lack of conformity between Article 41 in the Charter and the situation calling for a law or the interpretation of a law which demands that the agents administering such a law, even if they are the accused, give their unconditional loyalty / honesty to their supervising body (the Superior Council of the Judiciary), whereby the coverage of this demand is so extensive as to oblige such agents to aid in their own self-incrimination. The Court deemed these arguments to be an objection. The Public Prosecution and the Superior Council of the Judiciary were both heard on the issue. The former's answer was that the process of issuing a preliminary ruling was not pertinent, while the latter concluded that there were insufficient grounds for making a preliminary ruling, mainly because the allegations that the rules governing European Law had been breached, were unfounded. Owing to the fact that the appellant requested the Court of Justice to make a preliminary ruling on the questions of law indicated, which queried whether the Statutes on Judicial Conduct and the Code on Criminal Procedure respected Community law, mainly the Charter and Article 6 of the ECHR, the question/objection that had to be decided upon concerned the pertinence of the request when taking into consideration Article 267 of the Treaty on the Functioning of the European Union, and Articles 51 and 52 of the Charter.